Abuse and Key Legal Issues by Paula Barran by liuhongmei

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									Oregon Law
 Institute

  Paula A. Barran
pbarran@barran.com
Emerald Steel v. Bureau of Labor
 Oregon Supreme Court Clarification of Medical
  Marijuana

 Significant constitutional opinion


 Preemption and statutory construction




                        Barran Liebman LLP
Emerald Steel: Key Holdings
 To the extent that ORS 475.306(1) authorizes the use of
 medical marijuana, the Controlled Substances Act preempts
 that subsection.

 We note that our holding in this regard is limited to ORS
 475.306(1); we do not hold that the Controlled Substances
 Act preempts provisions of the Oregon Medical Marijuana
 Act that exempt the possession, manufacture, or distribution
 of medical marijuana from state criminal liability.




                          Barran Liebman LLP
Oregon Medical Marijuana
& Employers
 OMMA states that it does not require employers to
  accommodate the use of medical marijuana “in any
  workplace”

 BOLI interpreted “in any workplace” are meaning use
  during the work day on work premises

 BOLI resolved In Re Emerald Steel by declaring marijuana
  equivalent to prescription medication
      Employers required to accommodate users in the same way as
       they are required to accommodate prescription medication
       users

                             Barran Liebman LLP
What Were Other States Doing?
 California: Ross v. Ragingwire
    Employer not required to accommodate
    Interpretation of state statute
    Did not address federal law


 Washington: Roe v. Teletech
   Employer not required to accommodate


 Oregon before April 14, 2010
   Employer required to accommodate unless proof of
    undue hardship
                       Barran Liebman LLP
Who is Emerald Steel
& How Did This Happen?
 Manufacturer of steel products
 Employees use equipment like drill presses
 Some jobs are safety sensitive
 Employee with anxiety, stomach cramps, difficulty
  eating, nausea, vomiting
 Marijuana use was 1-3 times per day
      Authorization permitted use every waking hour



                          Barran Liebman LLP
Disclosure & Litigation
 Employee disclosed use of the drug, was not hired on regular
  basis

 Employee argued
    He had worked 7 weeks without accident
    There was no interactive process to discuss accommodation



 BOLI: employer must accommodate


 Oregon Court Appeals:
   Did not reach issue
                            Barran Liebman LLP
In the Oregon Supreme Court
 Marijuana is illegal under federal law


 Oregon state law cannot overcome federal law
   State law permitting use conflicts with federal
    program

 Employer is not required to
    Accommodate users
    Have an interactive process with them

                         Barran Liebman LLP
Appeal?
 BOLI announced there will be no appeal of the
  decision

 Recent Supreme Court decisions suggest the
  program would not be supported at a federal level
      Raich v. Gonzales
           California program
           Controlled Substances Act as closed regulatory system



                              Barran Liebman LLP
Can employees still assert
marijuana-related rights?
 Employers without policies


 Employers who enforce policies against some employees but
  not others

 Public employers who violate constitutional privacy rights


 Testing glitches


 General confidentiality or privacy issues

                             Barran Liebman LLP
Is There a Statutory Fix?
 Supreme Court fixed on language “permitting” use
      Can there be state language that stops short of
       permitting or authorizing use?

 If federal law changes, legality of marijuana could
  change




                           Barran Liebman LLP
Other Pending Legal Issues
 Board of Pharmacy rescheduling of marijuana
      Rescheduling to Schedule II
      Rescheduling on a state level is probably irrelevant
       except for state criminal penalties

 Legalization initiatives
      Will likely have minimal effect except for state
       criminal penalties


                           Barran Liebman LLP
Summarizing the Impact
 Employers are not required to have substance abuse policies
       Except certain federal or state contractors or employers in
        the transportation or pipeline industries

 Employers can prohibit use of marijuana as an illegal drug

 Anti-drug policies can be enforced throughout the Oregon workforce
   if employers chose

 Employers have no obligation to attempt to reach an accommodation
   through interactive process

 Employers still have to attempt to accommodate the underlying
   condition if it is a disability
                                     Barran Liebman LLP
Substance Abuse & the ADA
 Key statutory points
    Illegal use of drugs is unprotected activity
        Safe harbor requires participation in rehab program and

         abstinence
    Alcoholism is a disability but work-related misconduct or
     impairment is not protected
    A test for illegal drugs is not a medical test


 Accommodation
    Leave
    Last chance agreements
       Caution required related to restricting off duty alcohol use

                              Barran Liebman LLP
GINA
 A drug or alcohol test is not genetic information
 Information about the manifestation of disease in
  a family member is genetic information
      Medical history of parent’s alcoholism?
 Test to show predisposition to alcohol or drug
  abuse is genetic information




                          Barran Liebman LLP
FMLA
 Substance abuse disorders can be serious health
  conditions
      Employees can request leave to attend
       rehabilitation programs




                         Barran Liebman LLP
Treatment Records
 Typically provide more information than employer
  wants or needs
      Requests for records are subject to ADA
       requirement that employer request only those
       records reasonably necessary
 Treatment records may implicate GINA
 Records of federally funded treatment programs
  are confidential
      Employee can consent
                         Barran Liebman LLP
Employment-related Drug Testing
Criminal Violations
 Falsifying drug test results is a Class B
  misdemeanor
      Covers possession of “substance or device”
           Synthetic urine
           Whizzinator, Urinator or other appliances
           Urine The Clear or other substances (claiming to flush
            employee’s system)
           Adulterating substances
           Substituting specimen or using freeze dried urine


                              Barran Liebman LLP
Unemployment and Workers
Compensation
 Unemployment benefits
    Drug and alcohol adjudication rules
    Revised 2006

       OAR 471-030-0125
 Workers compensation
       ORS 656.005
          Not a “compensable injury” if:

              major contributing cause is consumption of alcoholic beverages or
               the unlawful consumption of any controlled substance
              unless employer permitted, encouraged or had actual knowledge of
               such consumption
              proof must be by a preponderance of evidence

                                  Barran Liebman LLP
Public Employment
 Constitutional considerations may limit pre-
  employment or random testing
    Lanier v. City of Woodburn
    No-cause testing was unconstitutional because
     suspicionless and no substantial justification
    Child supervision insufficient as substantial
     justification



                        Barran Liebman LLP
Special Peyote Rules
 Controlled Substances Act excepts religious use of
  peyote

 Religious may implicate accommodation of use
      Other drugs or religion are not subject to the
       exception




                          Barran Liebman LLP
A Look into the Future
 Oregon legalization initiative
      Needs to be re-conceived after Emerald Steel
 Rescheduling of marijuana (state)
 Administration drug czar
      Obama administration does not support
       legalization of marijuana
 Possible Congressional action
 Legalization initiatives in many states

                         Barran Liebman LLP
Thank You



 Questions?

  Paula A. Barran
pbarran@barran.com


      Barran Liebman LLP

								
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